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November 17, 2011

 

Leaders Requesting Hearings to Determine the Facts Surrounding

Then-Solicitor General Elena Kagan’s Role in the Defense of the PPACA

November 17, 2011

 

The Honorable Lamar S. Smith

Chairman, House Committee on the Judiciary

2138 Rayburn House Office Building

Washington, D.C. 20515

 Re:      Hearings to Determine the Facts Surrounding Then-Solicitor General Elena Kagan’s Role in the Defense of the PPACA.

 Dear Chairman Smith:

             Thank you for your diligent work to determine the facts surrounding then-Solicitor General Elena Kagan’s role in the Obama Administration’s legal defense of challenges to the Patient Protection and Affordable Care Act (“PPACA”).  For the reasons stated below, we respectfully call upon the House Judiciary Committee to immediately hold hearings to investigate the extent to which U.S. Supreme Court Justice Elena Kagan was involved in formulating the legal defense of the PPACA during her former service as Solicitor General.

             As you are aware, on June 24, 2011, forty-nine (49) Members of the House of Representatives called upon the House Judiciary Committee to investigate the above issue. In support of their letter, on July 6, 2011, you wrote to Attorney General Holder asking him to release certain relevant documents, and to make Neal Katyal and Tracy Schmaler available for interviews.  You asked General Holder to respond by July 29, 2011.  General Holder not only failed to respond by July 29, but waited nearly four months to respond.  On October 27, 2011, through an Assistant Attorney General, Ronald Weich, General Holder refused to comply with your request and, instead, characterized your reasonable request as “unseemly.”  On October 28, 2011, you again asked General Holder to produce the documents and to make the two individuals available by November 4, 2011.  As of the writing of this letter, General Holder has again failed to respond.

             As you are also well aware, documents finally released through Freedom of Information Act (“FOIA”) requests indicate that Justice Kagan actively participated with her Obama Administration colleagues in formulating a defense of the PPACA.  Justice Kagan admitted during her Supreme Court Confirmation hearings before the U.S. Senate Judiciary Committee that she was present for “at least one” meeting in which the PPACA litigation was discussed.[1]  Moreover, then-Solicitor General Kagan made the unusual, but not unprecedented, decision for the Solicitor General’s office to coordinate with the Department of Justice (“DOJ”) while preparing the earliest defenses of PPACA rather than following standard practice of waiting until the act reached the appellate courts.[2]  Furthermore, Kagan personally appointed the over-sight of the PPACA defense to her top deputy – a political appointee – who zealously stated his desire to “crush” those challenging the constitutionality of PPACA.[3]  Kagan both received and responded to emails about the PPACA litigation[4] which the Department of Justice now refuses to produce in whole in response to the aforementioned FOIA requests, claiming that such documents are “privileged” under an exemption traditionally reserved for those participating in their role as attorneys in a case.[5]

            It is now apparent that Justice Kagan participated as an attorney in preparing the defense of the PPACA.  As such, the law mandates two separate reasons why she must recuse herself from ruling on any cases involving the PPACA.  First, 28 U.S.C. § 455(b)(3) mandates that a judge or justice recuse themselves if the justice has “served in governmental employment and in such capacity participated as counsel, advisor or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”  The evidence indicates that, at a minimum, Justice Kagan participated in the defense of PPACA as counsel.  Second, 28 U.S.C. § 455(a) mandates that a judge or justice recuse herself if her “impartiality might reasonably be questioned.”  For all the reasons discussed above, a reasonable person would certainly have sufficient basis to question the impartiality of Justice Kagan if she were permitted to prepare the defense of a case as an advocate and then switch roles and judge the defense of that same case as a justice.

 Conclusion

             Justice Kagan has not indicated whether she will recuse herself from litigation involving the PPACA.  Attorney General Holder has failed to comply with your repeated requests and has characterized your reasonable requests to determine the facts in this matter as “unseemly.”  We disagree, and believe that it would be “unseemly” for the system of “checks and balances” to fail to operate in this landmark matter.  Accordingly, we respectfully request that you immediately hold hearings to investigate the full extent to which Justice Elena Kagan was involved in preparing the legal defense of the PPACA during her former service as Solicitor General.

             Respectfully,

 Phillip Jauregui, President, Judicial Action Group*

Carrie Severino, Chief Counsel & Policy Director, Judicial Crisis Network*

Curt Levey, Executive Director, Committee for Justice*

Virginia Armstrong, Ph.D., National Chairman, Eagle Forum's Court Watch*

Phyllis Schlafly, President, Eagle Forum*

Colin A. Hanna, President, Let Freedom Ring*

Penny Nance, President and CEO, Concerned Women for America*

Gary A. Marx, Executive Director, Faith and Freedom Coalition*

Kay R. Daly, President, Coalition for a Fair Judiciary*

Tom McClusky, Sr. Vice President, Family Research Council Action*
Mario H. Lopez, President, Hispanic Leadership Fund*

Rev. Louis Sheldon, Chairman and Founder, Traditional Values Coalition*

Andrea Lafferty, President, Traditional Values Coalition*

Dr. Rick Scarborough, President, Vision America*

Gary Bauer, President, American Values*

Susan A. Carleson, Chairman/CEO, American Civil Rights Union*

Nicole Kurokawa Neily, Executive director, Independent Women's Forum*

Sue Lynch, President, National Federation of Republican Women*

Dr. William Greene, President, RightMarch.com*

L. Brent Bozell III, ForAmerica*

Matt Kibbe, President and CEO, FreedomWorks*

Bishop E.W. Jackson, STAND America*

Timothy F. Johnson, Ph.D., Founder & National Chairman, The Frederick Douglass Foundation*

Fr. Frank Pavone, National Director, Priests for Life*

President, National Pro-life Religious Council*

Dr. Jim Garlow, Chairman, Renewing American Leadership Action*

Jim Martin, Chairman, 60 Plus Association*

Richard A. Viguerie, Chairman, ConservativeHQ.com*

Seton Motley, President, Less Government*

Jeffrey Mazzella, President, Center for Individual Freedom*

Ron Pearson, President, Council for America*

Linda Harvey, President, Mission America*

Keith Wiebe, President, American Association of Christian Schools*

Cindy Chafian, President, The Mommy Lobby*

Jim Backlin, Christian Coalition of America*

Sandy Rios, Chairman, Family PAC Federal & Patriotic Veterans*

Dr. Jane Orient, Executive Director, Association of American Physicians and Surgeons*

Amy Kremer, Chairman, Tea Party Express*

Lisa Miller, Tea Party WDC*

Art Ellingsen, Founder, Arlington Heights TEA Party*

Jennifer Hulsey, Co-Founder, American Grassroots Coalition*

Mike Sabot, Albany Area Tea Party*

Jeffrey Gayner, Chairman, Americans for Sovereignty*

Dr. Day Gardner, President, National Black Pro-Life Union*

C. Preston Noell III, President; Tradition, Family, Property, Inc.*

Troy Newman, President, Operation Rescue*

Rev. Gary Cass, Chairman / CEO, Defend Chirstians.org*

Chaplain Gordon James Klingenschmitt, President, The Pray In Jesus Name Project*

Hal Scherz, MD, Founder and President, Docs 4 Patient Care*

Beth Haynes, President of The Black Ribbon Project for Healthcare Freedom*

Christopher M. Jaarda, President, American Healthcare Education Coalition*

Paul Hsieh, MD, Co-founder, Freedom and Individual Rights in Medicine (FIRM)*

Jared M. Rhoads, Director, Center for Objective Health Policy*

Brian T. Schwartz, PhD.  PatientPowerNow.org*

Kathryn Serkes, Chairman, Doctor Patient Medical Association*

Kelly Benedetti, Executive Director, Patient power alliance*

Kenneth R. Timmerman, Author; Member, Committee on the Present Danger*

David Catron, Columnist and Health Care Revenue Cycle Expert*

Michelle Morin, Blogger, Speaker, Writer; Founder of Restore Freedom Now*

Michael P. Donnelly, Staff Attorney, Home School Legal defense Association*

Diane Gramley, American Family Association of Pennsylvania*

Dee Hodges, President, Maryland Taxpayers Association*

Eunie Smith, President, Eagle Forum of Alabama*

Gary G. Kreep, Executive Director, United States Justice Foundation*

Elaine Donnelly, President, Center for Military Readiness*

Amy Ridenour, Chairman, National Center for Public Policy Research*

Kyle Ebersole, Conservative Action Alerts*

Dr. Rod D. Martin, President, National Federation of Republican Assemblies*

Rick Needham, President, Alabama Republican Assembly*

Charlotte Reed, President, Arizona Republican Assembly*

Dr. Pat Briney, President, Arkansas Republican Assembly*

Celeste Greig, President, California Republican Assembly*

Rev. Brian Ward, President, Florida Republican Assembly*

Paul Smith, President, Hawaii Republican Assembly*

Ken Calzavara, President, Illinois Republican Assembly*

Craig Bergman, President, Iowa Republican Assembly*

Mark Gietzen, President, Kansas Republican Assembly*

Sallie Taylor, President, Maryland Republican Assembly*

David Kopacz, President, Massachusetts Republican Assembly*

Chris Brown, President, Missouri Republican Assembly*

Travis Christensen, President, Nevada Republican Assembly*

Nathan Dahm, President, Oklahoma Republican Assembly*

Ray McKay, President, Rhode Island Republican Assembly*

Paula Mabry, President, Tennessee Republican Assembly*

Hon. Bob Gill, President, Texas Republican Assembly*

Patrick Bradley, President, Utah Republican Assembly*

Ryan Nichols, President, Virginia Republican Assembly*

Mark Scott, President, West Virginia Republican Assembly*

 

 

* Organizations listed for identification purposes only.

cc:        The Honorable John Boehner, Speaker, U.S. House of Representatives

            The Honorable Eric Cantor, Majority Leader, House of Representatives

            The Honorable Kevin McCarthy, Majority Whip, House of Representatives

            The Honorable Jeb Hensarling, Chairman, House Republican Conference

            The Honorable Tom Price, Chairman, Republican Policy Committee



[1] Elena Kagan United States Supreme Court Confirmation Hearings, 111th Cong. (2010) (statement of Elena Kagan) (admitting that she was present for “at least one” meeting where PPACA litigation was discussed.)

[2] “The task of the Office of the Solicitor General (“OSG”) is to supervise and conduct government litigation in the United States Supreme Court.”  This extends to reviewing lower court cases which may need to be appealed to the Supreme Court, but the OSG typically only becomes involved in litigation once it is expected to reach the Supreme Court. See: http://www.justice.gov/osg/about-osg.html

[3]   E-mail from Neal Katyal, Kagan’s top deputy to Brian Hauck, senior counsel to Associate Attorney General Tom Perrelli (Jan 8, 2010) (stating “[a]bsolutely, right on.  Let’s crush them” in response to an e-mail from Hauck stating “[t]om wants to put together a group to get thinking about how to defend against inevitable challenges to the health care proposals.”  Full email available at page 56 of: http://cnsnews.com/sites/default/files/documents/FOIA%20DOCUMENTS-DOJ.pdf

[4] Id. at 3.

[5] See United States Department of Justice website; available at: http://www.justice.gov/oip/exemption5.htm